Justice Mary J. Nolan of the Ontario Superior Court dismissed a slip and fall action against homeowners whose property lay next to a municipal sidewalk. In Peterson v. Windsor, The plaintiff had slipped on the sidewalk and sued both the city and the homeowners. The defendant homeowners brought this motion for summary judgment and Justice Nolan granted it. In her reasons, she discussed the circumstances in which a homeowner can be liable for accidents that occur on adjacent property, owned by the municipality.
Here, it was the City of Windsor that was particularly interested in keeping the homeowners in the action. This was presumably so that there would be more than one pocket to respond to the plaintiff’s claims.
Justice Nolan referred to the Court of Appeal’s decision in Bongiardina v. York for the proposition that “there is no common law duty on the owner of property to clear snow and ice from public sidewalks adjacent to their property. The snow and ice on public sidewalks are the legal responsibility of the municipality”.
The Bongiardina case held that there are two exceptions to this rule: (1) where the homeowner assumes control of the municipal property (as, for example, where a storeowner uses it to display wares); or (2) where some condition on the homeowner’s own property migrates to the city property and causes injury. An example given of the latter was water that flows onto municipal property and freeezes, creating a hazard.)
Neither of these circumstances existed here. Justice Nolan noted that although there was here a city by-law that required owners to clear adjacent sidewalks of snow and ice, breach of that by-law was punishable by penal sanctions. The by-law did not, in her view, give rise to civil liability on the part of the homeowners.
Finally, Justice Nolan laid heavy emphasis on the fact that the City of Windsor had failed to plead that the homeowners had done anything that would make them “occupiers” of the city sidewalk. She said that the pleadings and the material facts defined the “four corners” of the parties’ dispute. Here, the failure by the City and the plaintiff to even allege facts that could have given rise to an arguable case led to the dismissal of the action against the homeowners.